3 Fraud WaiverINA § 212(a)(6)(C)(i): Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided is inadmissible.INA § 212 (i)Extreme Hardship to USC or LPR Spouse or Parent (children not included)Does not waive marriage fraud or false claim to USCAILA DC Annual Fall ChapterWaivers of Inadmissibility

4 Crimes INA §212(h) Waives: INA §212(h)CIMT Crimes of Moral Turpitude INA § 212 (a) (2) (A)(i)(1)Refers to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. The offender’s evil intent or corruption of the mind is important.ProstitutionSingle offense of Marijuana-less than 30 gramsAILA DC Annual Fall ChapterWaivers of Inadmissibility

5 212(h) cont.The IJ balances the adverse factors, with the social and humane considerations - Matter of Mendez, 21 I & N Dec. 296 (BIA 1996).If violent or dangerous crimes - must show extraordinary circumstances 8 CFR §1212.7(d).Standard: Extreme hardshipQualifying relatives: Spouse, parent, childIf more than 15 yrs. since activities – only need to show that admission not contrary to US national welfare, applicant rehabbed, (except prostitution)AILA DC Annual Fall ChapterWaivers of Inadmissibility

7 Key Arguments for Extreme HardshipExtreme hardship is from point of view of qualifying relative in US and abroadArgue in consideration of the waiver (e.g., how waiver would hurt qualifying relative)Argue totality of circumstancesArgue for mitigating factors – Look to PD memos in last two years – and against aggravating factorsAILA DC Annual Fall ChapterWaivers of Inadmissibility

9 Working with Clients on Extreme Hardship CasesEmpathize but remain detachedMeet “human needs” – drink/bathroomGood interpreterKnow client’s country conditionsPrepare to spend time on the application and have multiple interviewsExplain why you are asking certain questionsBe sensitive to trauma and give breaksAILA DC Annual Fall ChapterWaivers of Inadmissibility

10 WORKING WITH EXPERTS When to use one: How to find one:Always in cases requiring waiversTiming in preparation of case keyHow to find one:Inquire with colleaguesCheck with UniversitiesClients are not required to use who you recommend; they are entitled to use their ownAILA DC Annual Fall ChapterWaivers of Inadmissibility

11 WORKING WITH EXPERTS, cont’d.How to Liaise with experts:Explain the purpose your client needs to meet with themLet them know that their report will be reviewed by CIS or EOIR or ICEExplain the application before immigration and the need for a waiver and “extreme hardship”Explain which family members need to meet with them for their assessment and whose hardship mattersExplain any facts you are aware of that client should reveal to them, and let them take it from thereDo not tell them what their assessment should containAILA DC Annual Fall ChapterWaivers of Inadmissibility

12 WORKING WITH EXPERTS, cont’d.Privacy and Confidentiality concerns:Necessary for expert to maintain confidentiality, and understand attorney client confidentialityTestimony for Deportation ProceedingsNo preparation from you should be necessaryAsk expert to review their own assessmentAsk client to contact expert prior to trial to inform them of any change in their situation or their family; if so, then necessary for follow-up assessmentAILA DC Annual Fall ChapterWaivers of Inadmissibility

13 Stateside Provisional Waiver Proposed ProgramWho Would Be Eligible?Only ground of inadmissibility is unlawful presenceBeneficiary of approved I-130Hardship to an immediate relativeNot in proceedings or subject to final orderOver age of 17Physically Present in US at time of filingStatus of Program & Advising ClientsProposed rule published and comment period closedAwaiting publication of final rule – USCIS has said it will be published by end of calendar year 2012AILA DC Annual Fall ChapterWaivers of Inadmissibility

14 Appealing Denial of a WaiverJurisdiction: AAO or BIASubmitting a Brief in Support of AppealAbility to Present Additional Evidence?Practice Pointer – refiling vs. appealingAILA DC Annual Fall ChapterWaivers of Inadmissibility